Bybee v. Wilson

Opinion op the Court by Judge Moorman

Affirming.

Appellant filed bis petition in equity in tbe Allen circuit court against T. A. Wilson and Mrs. E. M. Netherton, wherein be alleged that be was tbe owner of and entitled to tbe possession of a tract of land on tbe Mays-ville road, about five miles eact of Seottsville, consisting of about fifteen acres; and that Wilson was claiming it under some sort of pretended conveyance from bis codefendant, Mrs. E. M. Netherton. He aslced that he be adjudged tbe owner of tbe land, and that tbe court direct the master commissioner to execute and deliver to him a deed of conveyance for it.

A demurrer to tbe petition wa,s sustained, and appellant, declining to plead further, prosecutes this appeal for a reversal of the judgment rendered by tbe court below.

Although tbe petition alleges that appellant is tbe owner of tbe land it does not aver that be holds tbe legal title, but sets up tbe facts on which bis claim of ownership is based. They are, that be is tbe son and only surviving heir of Lizzie Bybee, who died intestate in Allen county; that at tbe time of her death she owned some personal property and thereafter be furnished to bis stepfather, John Hatfield, who survived Lizzie By-bee, a part of the personal property that bis mother left, and also a wagon and a team, with which John Hatfield purchased tbe land. It is further averred that, after tbe death of Lizzie Bybee, Hatfield married E. M. Netherton, and within four months after tbe land was purchased, died; that E. M. Netherton, by tbe permission of appellant, remained on tbe land, agreeing to surrender it to appellant on demand; and that subsequently she sold it to her codefendant, T. A. Wilson, who has since been claiming and occupying it.

*646 It will be observed that the claim of equitable title is founded, as averred, on the purchase of J ohn Hatfield, the consideration for which was furnished by appellant. Accepting the allegations of the petition as true, which must be done on demurrer, the question is, did Hatfield’s purchase, under the circumstances set forth, vest in appellant the equitable title or effect a trust for his benefit1? It has been held, conformable to section 2353 of Kentucky Statutes, that when a deed shall be made to one person and the consideration shall be paid by another, no use or trust shall result in favor of the latter; but where a vendee (i) takes a deed in his own name, without the consent of the person paying the consideration, or (2) the grantee, in violation of some trust, shall have purchased the land deeded with the effects of another, a trust will result. Roche v. Roche, 188 Ky. 327 , and Acker, etc. v. Henry Clay Oil Co., etc., 196 Ky. 508 . Appellant’s case, as stated in the petition, must be measured by these rules; and it will be noted that it is not charged that the deed to the land was taken in the name of John Platfield without the consent of appellant, who paid the consideration, or that Hatfield, in violation of some trust, purchased the land deeded with the effects of appellant. Plence, neither of the conditions, under which equity would decree a resulting trust for the benefit of appellant, is shown to exist. Besides, it is alleged in substance that the purchase was made with the consent of appellant who paid the consideration, which is precisely the state of case that the statute says shall not effect a trust. It is plain, therefore, that the equitable title did not vest in appellant, and, as he does not allege that he is the holder of the legal title, it follows that his petition failed to state a cause of action, and the demurrer thereto was properly sustained.

The judgment is affirmed.